Treadwell v. Schweiker

• Decision Date: 11 January 1983
• Docket Number: D,No. 564,564
• Citation: 698 F.2d 137
• Parties: , 1 Soc.Sec.Rep.Ser. 846 Margaret TREADWELL, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee. ocket 82-6124.
• Court: U.S. Court of Appeals — Second Circuit

Page 137

698 F.2d 137

1 Soc.Sec.Rep.Ser. 64, 1 Soc.Sec.Rep.Ser. 846

Margaret TREADWELL, Plaintiff-Appellant, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant- Appellee.

No. 564, Docket 82-6124.

United States Court of Appeals Second Circuit.

Submitted Dec. 13, 1982.

Decided Jan. 11, 1983.

Farmworker Legal Services of New York, Inc., Newburgh, N.Y. (Howard Schell Reilly, Thomas A. Harnett, Newburgh, N.Y., of counsel), for plaintiff-appellant.

John S. Martin, Jr., U.S. Atty., S.D.N.Y. (J.D. Pope, Peter C. Salerno, Asst. U.S. Attys., New York City, of counsel), for defendant-appellee.

Before KAUFMAN, TIMBERS and CARDAMONE, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The case before us presents a somewhat ironic situation. The failure to employ available procedures, and the resulting nonenforcement of administrative subpoenas, appears to have stemmed not from absence of sympathy to the claimant's position, but from a lack of understanding how to proceed. As the facts indicate, the error of omission led to other procedural infirmities, and ultimately to a deprivation of due process. Accordingly, we reverse and remand. 535 F.Supp. 643.

I

We set out in some detail the intricate procedural and factual matrix which generated this appeal.

Margaret Treadwell, an illiterate migrant farmworker representing herself, first applied for disability insurance benefits in December, 1973. On February 22, 1974, her application was denied, the Director of HEW's Division of Initial Claims having determined Treadwell had not demonstrated "insured status," pursuant to the Social Security Act, 42 U.S.C. Sec. 423(c)(1)(B)(i). That provision requires a claimant to establish he or she earned twenty calendar "quarters of coverage" during the forty quarter period ending with the quarter in which the disability is alleged to have arisen. ¹ Because the Administration's official earnings record evidenced credit for only twelve quarters of coverage during the relevant period, Treadwell had not proved her eligibility for benefits. See id. Sec. 405(c)(4)(B) (absence of entry in Secretary's records as to wages alleged to have been paid considered presumptive evidence of nonpayment).

In response to this initial denial, Treadwell submitted statements to supplement her earnings record and to show she had been employed for a sufficient number of quarters to qualify for disability insurance. She named various employers, in New York and Florida, for whom she claimed to have worked, and who might have failed to report her earnings to the Social Security Administration. Treating her statements as an implied request for reconsideration, the Administration attempted to communicate with the employers she had named. Of those who replied--and several never did--the majority failed to substantiate Treadwell's claim of employment. In February, 1977, on reconsideration, the claim was again denied.

In December, 1977, Treadwell, now represented by counsel, was granted a hearing before an Administrative Law Judge. On May 3, 1978, two weeks before the hearing, Treadwell's attorney requested the issuance of administrative subpoenas. Noting that although his client would testify at the hearing, she "can neither read nor write and has no written records from the years in question," counsel asked the ALJ to subpoena eight employers and their payroll and tax records, see 42 U.S.C. Sec. 405(d). The ALJ issued subpoenas requiring production of the documents, but not compelling the employers' appearance at the hearing. ²

By the time of the hearing, only two of the eight subpoenaed employers had responded. Daniel Kaduk, a Newburgh, New York resident for whom Treadwell claimed to have performed domestic work, wrote:

Margaret Treadwell, to the best of our recollection, only worked a few days in March and April of 1973 as a domestic. It was never reported because she didn't earn enough to report.

Joseph Rapisardi, owner of a farm in the Newburgh area, did not respond directly. Rather, his son-in-law, Benjamin Gilberti, after indicating Rapisardi was in Europe and would remain unavailable for some months, stated that the farm had been sold more than five years previously, and "[a]s for the records, they were all destroyed in a fire ...." Gilberti went on to say that Treadwell had "never been in Mr. Rapisardi's regular employment," although she may have "worked a few days" in place of her daughter, during the latter's illness. No details were given--if, indeed, Gilberti knew them--of the daughter's indisposition or the time of its occurrence, nor did Gilberti state the wages Treadwell "may have" earned. Gilberti ended his letter by gratuitously expressing his belief that Treadwell "was perpetrating a fraud" by "claiming disability," a somewhat puzzling assertion since Gilberti does not appear to have possessed any knowledge of the nature of Treadwell's claim.

Of the remaining subpoenaed employers, four were in Florida. At the hearing, after stating he did not expect them to come to New York to testify, the ALJ suggested the administrative record be kept open, and the Floridians be given an opportunity to respond to written questions submitted by Treadwell. Treadwell's attorney acceded to this procedure. ³ Regarding the New York employers who had not answered the subpoenas, Noreco Fruit Packing Co. and Marlboro Freezers, counsel registered his request that they be compelled to do so, and noted that despite the specificity of the subpoenas, "[some of] the local people who are just a few miles away ... say, 'Never worked for me.' Period." Obviously sympathetic to Treadwell's complaint that the employers' failure to comply with the terms of the subpoenas prejudiced her ability effectively to "confront" them, the ALJ suggested counsel conduct his own investigation. The ALJ did not, however, indicate a readiness to enforce the subpoenas because he was laboring under the belief that the exclusive authority to do so was lodged with the United States Attorney.

Oral testimony taken at the hearing further entangled an already snarled evidentiary web. Treadwell had claimed, via her attorney's introductory remarks, that she would establish the requisite quarters of coverage based upon, inter alia, domestic work for Kaduk and a second employer, one "Gilverte." As it developed, however, she did not testify concerning work performed for Kaduk. She did claim to have worked for Gilverte, although she did not testify to the amount earned. As noted, one Gilberti wrote a letter in response to the subpoena issued to the Rapisardi farm, admitting Treadwell had perhaps been briefly employed there, although denying she had ever been in the regular employ of the farm. Whether Gilverte is Gilberti, and whether Treadwell was claiming to have taken on domestic chores for Mrs. Gilberti about the time she was also employed by the farm, or whether the similarity in names is purely fortuitous, and therefore irrelevant, are issues as cloudy as virtually every other detail in this case.

Treadwell also testified concerning agricultural labor. She claimed to have been employed intermittently over a period of approximately fourteen years by Troncillito's farm in New York. Although initially uncertain of the specific years she performed this seasonal work, Treadwell eventually estimated the fourteen-year period ran from 1958 to 1972. She also testified to having worked for several Florida employers. Three were itinerant "crew leaders," in charge of groups of migrant workers, and treated as employers for social security purposes when they pay the worker directly, 20 C.F.R. Sec. 404.1010 (1982). The other was a Donald Manke, for whom Treadwell said she had done domestic work. ⁴

All four were subjected to the written question and answer procedure previously suggested by the ALJ. Of the three crew leaders, one (Willie Bonds) claimed never to have employed Treadwell, one (Clarence Barnett) could not be reached, and one (Otis Wilson) reported that Treadwell had worked for him on a part-time basis and that her work was credited variously to her husband, son-in-law, or granddaughter, but claimed not to recall either the years Treadwell had worked or the rate of pay for work she had done. Wilson did state Treadwell worked as many as five eight-hour days in several different years. Apparently unaware of any irony implicit in the remark, Wilson stated: "No records on Margaret Treadwell at all. I am willing to let [the Social Security Administration] look at my records for these years, but I no longer have them." ⁵

Manke, proprietor of the Indian Lake Motel, stated in a telephone conversation with a Social Security Administration representative that Treadwell had worked for him no more than four days and had earned less than thirty dollars. In direct contradiction, the official Administration "Itemized Statement of Earnings" reflected payment to Treadwell by the hotel of over five hundred dollars. ⁶

Lina Mae Hillard, Treadwell's daughter, testified that she and her mother had worked at Troncillito's. Hillard also corroborated her mother's claim of employment by Noreco, Marlboro Freezers, "Gilverte," Kaduk, and the Floridians. Finally, Treadwell's husband stated that from the beginning of the relevant period until 1972 he and his wife picked crops seasonally at Troncillito's, except when she performed domestic work. He also testified to their employment together on various farms in Florida, but did not specify either the years they were so employed, or the wages Mrs. Treadwell received. ⁷

After the hearing, Marlboro Freezers sent a detailed report, on the basis of which Treadwell was credited with two additional quarters of coverage, bringing her total to fourteen. Additionally, Treadwell's counsel requested enforcement of the subpoenas issued to Kaduk and Troncillito's. ⁸ Although, as we have indicated, Kaduk had written the ALJ that no records or reportable earnings...